West

The controversy involved in this ac»tion arises out of the construction to be given to the-terms of an instrument executed between the subscribers thereto for the incorporation of the plaintiff, and preliminary to such incorporation. The instrument itself was before this court in the case of West v. Crawford, 80 Cal. 19 , and is there set out at length. It was then held that West was authorized to collect in his own name twenty per cent of the amount that the parties to that instrument had agreed to subscribe to the capital stock of the plaintiff, by reason of their express agreement therein to pay it to him. After that decision, the subscribers paid this twenty per cent to West, and at the commencement of this action, he had in his hands of the amount so collected by him, $35,861.25, *402 for the recovery of which the plaintiff brought this action, as money had and received by him to and for its use and benefit. After the commencement of the action, West, under the order of the court therefor, paid the money to the clerk of the court to be held subject to the order of the court, and the appellants were substituted as defendants in his place, and answered the complaint. Upon the…